REPORTABLE

IN THE SUPREME COURT OF INDIA      CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1046 OF 2010

SMT. GARGI                         ... APPELLANT(S)

        VS.

STATE OF HARYANA          … RESPONDENT(S)

JUDGMENT  

Dinesh Maheshwari, J.

Preliminary  

1. This  appeal  by  special  leave is  directed  against  the  common

judgement  and order dated 05.03.20081 whereby, the High Court  of

Punjab and Haryana at Chandigarh has partly affirmed the judgment

and order dated 09.06.1998 in Sessions Case No. 63 of 1997 by the

Additional Sessions Judge, Ambala; and has upheld the conviction of

the  appellant  for  the  offence  punishable  under  Section  302  of  the

Indian  Penal  Code  ('IPC')  even  while  acquitting  the  co-accused

persons of the charge under Section 302 read with Section 120-B IPC.

1.1. In a brief outline of the material aspects, it may be noticed that in

the present case, the appellant was charged with the imputations that

1 in Criminal Appeal Nos. 341-DB of 1998 and 359-DB of 1998.

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she  killed  her  husband  by  strangulation  and,  with  the  help  of  co-

accused persons (her brothers), hanged the dead body in one of the

rooms in the house, as if it were a case of suicide. The matter rested

on circumstantial  evidence where,  according to the prosecution,  the

relations of the deceased (husband) and the appellant (wife) were too

strained;  the  deceased  had  stated  threat  perceptions  that  his  wife

might kill him, for she was involved in illicit relations and was desirous

of grabbing his property. Two of the siblings of deceased, one brother

and one sister, testified in support of the prosecution case. Per contra,

the appellant,  while denying the imputations, took the plea that  she

was leading a happy married life with her husband for 18-19 years with

two children; and that the brother of the deceased, on whose statement

FIR was registered and who was the prime prosecution witness, was

carrying the ill-intentions to grab the property of her husband and had

managed her prosecution. The Trial  Court convicted all  the accused

persons  while  accepting  the  prosecution  case  and  rejecting  the

defence  version.  In  appeal,  the  High  Court,  though  found  that  the

circumstances brought on record were not sufficient to bring home the

charge  of  conspiracy  against  the  brothers  of  the  appellant  and

acquitted  them but,  affirmed  the  findings  against  the  appellant  and

maintained her conviction for the offence of murder of her husband.

Hence, this appeal.

The relevant facts and background aspects  

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2. Put in brief, the prosecution case had been that on 01.05.1997,

having  received  information  that  a  man  had  committed  suicide  in

House  No.  1297,  Sector-15,  Panchkula,  ASI  Amar  Singh  (PW-9),

accompanied by UGC Bidhi Chand and UGC Baldev Singh, reached

the spot  at  about  11.30 p.m.2,  only  to  find that  in  the room on the

second  floor  of  house,  the  deceased  Tirloki  Nath,  husband  of  the

appellant, was hanging by neck with his feet touching the floor. They

also found that a pool of blood had collected near the dead body; and

that  the dead body was emitting bad odour. The appellant  and her

children were in the same house, but on the first floor.   

2.1. At about 4.30 a.m. of 02.05.1997, i.e., nearly five hours after the

police  having  arrived,  the  complainant  Brij  Bhushan  Kaul  (PW-7),

brother  of  the  deceased,  reached  the  spot  with  his  wife,  mother,

sister’s husband and sister Smt. Radha Puri (PW-8). The complainant

made the statement that relationship of the deceased and the appellant

was too strained due to which, they were residing in separate rooms in

the same house; that the appellant had been ill-treating her husband,

which included restricting his use of  bathroom facilities in the same

house;  that  the  deceased  had  once  expressed  his  fear  that  the

appellant would leave the gas cylinder open with the intention to kill

him; and that the deceased had also stated that ‘the character of his

wife was bad’ and she was living ‘with bad women’.  The complainant

2 At what time did the police and the complainant receive this information, by which mode of communication, and through whom, are some of the questions having bearing in this matter, as shall be noticed hereafter later.  

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also stated that on 28.04.1997, the deceased came to his house (at

Ambala Cantt.) and told him that he would go to Panchkula and would

come  back  with  his  luggage  as  he  was  ‘very  much  fed  up  and

frightened’.  The  complainant  further  stated  that  in  the  night  of

01.05.1997  at  about  11.30  p.m.,  he  received  a  message  that  his

brother had passed away and thereupon, he arrived at the house of the

deceased accompanied by his mother, wife, sister and brother-in-law,

only to find the deceased in the condition as described hereinabove.

While  concluding,  the  complainant  stated  his  suspicion  that  the

appellant  had murdered his  brother  because the deceased had not

transferred his house as per her demands.  

2.2. For the incident in question, FIR No. 174 dated 02.05.1997 was

registered on the basis of the statement so made by the complainant.

In the preliminaries, the inquest report (Ex. PH/2) was prepared by ASI

Amar  Singh  (PW-9);  rough  site  sketch  (Ex.  PM)  was  prepared;

photographs were taken by the photographer Shashi (PW 11); and the

dead body was sent for post-mortem. Thereafter, the investigation was

taken  over  by  Inspector  Jag  Pravesh  (PW-10),  who  recorded  the

statements of witnesses, visited the spot, got prepared the scaled site

plan (Ex. PD) and also arrested the appellant. SI Ishwar Chander (PW-

12) also partly investigated this case. He arrested and released the

brothers of  appellant,  who were on anticipatory bail.  Thereafter, the

appellant  was  charge-sheeted  for  the  offence  punishable  under

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Section  302  IPC  while  her  brothers  were  charge-sheeted  for  the

offence punishable under Section 302 read with Section 120-B IPC.  

Prosecution evidence

3. After committal, the case was tried as Sessions Case No. 63 of

1997  in  the  Court  of  Additional  Sessions  Judge,  Ambala.  The

prosecution,  inter alia,  examined 12 witnesses. Having regard to the

subject matter of this appeal and the questions involved, it would be

advantageous to take note of the relevant aspects emerging from the

statements of material witnesses in requisite details, even at the cost of

a little inflation.

3.1. PW-1 Dr. Usha Bansal, who had been one of the members of

the  medical  board  that  had  conducted  post-mortem of  the  body  of

deceased and had prepared the report Ex. PA, stated the observations

and opinion as follows:

"... A well defined depressed ligature mark measuring 3 cm.  wide  seen  encircling  the  neck  around  the  thyroid cartilage with a knot  present  on left  side of  neck.  This ligature mark was ante-mortem in nature. A ligature mark above the thyroid cartilage going obliquely upward and posteriorly  on  left  side  present  with  an  irregular impression of knot on left side of the neck measuring 1.5 cm wide present. This ligature mark was of post-mortem nature....

xxx xxx xxx

In our opinion, the cause of death was asphyxia due to strangulation...The probable  time that  elapsed between injury and death was few minutes and between death and post-mortem was 24 hours to 72 hours....."

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3.2. PW-7 Brij Bhushan Kaul (brother of the deceased) has been the

prime  witness  of  prosecution  in  this  case.  The  relevant  assertions

occurring in his examination-in-chief read as under: -

“…..Upto Dec., 1997 I remained at Ambala Cantt. Tirloki Nath used to visit Ambala Cantt and was always found by us to be disturbed, because of the family problem. Tirloki Nath told us that he was shifted to a separate room at the top floor of the house and that he was not provided any article of food and was being mal-treated by his wife Smt. Gargi Devi. He also told many a time that he was never allowed to enter the room and toilet by his wife at night times.  Tirloki  Nath  deceased left  our  house at  Ambala Cantt  lastly  on  28.4.1997,  around  7.45  AM  and  while leaving, told that it was his last time to go to Panchkula to collect  his  belongings  and  then  would  be  coming  to Ambala Cantt for ever. On this, I asked him as to why he was taking this step. He told me that he was very much upset due to the illicit relations of his wife Smt. Gargi Devi and was afraid of that if he stayed in the same house at Panchkula, he could be murdered, with the help of her three brothers…On this I told him that it was not possible because a wife cannot kill her husband. However, while leaving our house, he was totally shattered. Tirloki Nath used to take tea only in his room at the top floor of the house,  using  his  independent  cylinder  in  his  room.  He was  not  provided  even  tea  by  Smt.  Gargi  and  the children. He told me that once his wife had opened the gas cylinder in order to kill him…..I was on tour on 1.5.97. I came back to my house at Ambala late in the night at about 11.30 PM. Immediately thereafter, I got a message from my neighbour, namely Mr. T.R. Malhotra giving me the  message  that  his  (sic) brother  Tirloki  Nath  at Panchkula was no more, as he received this information from some colleague  of  my  brother.  (Objected  to).  My brother was murdered. At that time, it  was not clear by whom.  Thereafter,  I  gave  telephonic  messages  to  my relatives  regarding  the  murder  of  my  brother.  So,  I alongwith my brother-in-law Mr. A.C. Puri, my sister Smt. Radha  Puri,  my  mother  Smt.  Raj  Kumari,  my  wife Meenakshi  went  to  Panchkula.  On  our  reaching  at Panchkula, we found two ASIs sitting outside the house of Smt. Gargi. On my enquiry, as to what had happened

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to my brother, I was told that I should go up-stairs and found out  myself.  We all  went  up-stairs  and found the dead body of Tirloki Nath hanging with a fan. The feet of my brother were touching the floor. Blood was noticed on the floor. The body was giving bad odour. I reported the matter to the police vide statement Ex. PH. It was signed by me.…….”

3.2.1. This witness PW-7,  in  his  cross-examination on behalf  of  the

appellant, stated, inter alia, as under: -

“It is correct that I was 1½ years old when my father died. Tirloki Nath was the eldest son of the second marriage of my  mother.…..There  are  two  brothers  and  two  sisters from the second marriage of my mother. My father died as told,  due to cancer at  Delhi,  in the year 1961.  It  is incorrect  to  suggest  that  Tirloki  Nath  deceased  had brought up all  the children of my mother from both the marriages. ….He bore expenses for some time regarding my  education  etc.  The  marriage  of  my  brother  Tirloki Nath  was  performed  about  19-20  years  ago.….My mother is having no source of income except the family pension  due  to  my  father’s  death  and  some  rental income. My mother had given on rent a house situated in Adarsh Nagar, Ambala Cantt. I joined Navy in the year 1978. I  was married in the year 1984. It is incorrect to suggest that all  the expenses of my joining the service and on my marriage were borne by my brother  Tirloki Nath. Since I was attached to my mother very well, I left my Navy job.  Tirloki  Nath after  his  marriage with Smt. Gargi  probably in the year 1978,  left  my mother alone and started living separately and so this was the main reason that I left my Navy job in the year 1980. It is wrong to suggest that I was involved in some case in the Navy and the police was after me and I absconded and left my job.  After  leaving  Navy, I  joined Forbes  Forbes,  Camp Bell & Co. Ltd. at Jammu in the year 1981 or 1982 as Sales Executive…… I never took my mother to Jammu because I started my business at Karnal and opened a kiryana shop. It is wrong to suggest that I committed a fraud at  Jammu and my services were terminated and thereafter I started a kiryana shop at Karnal. It is correct that the house in Adarsh Nagar, Ambala Cantt was sold and the proceeds of that house were utilised by me in opening  a  kiryana  shop  at  Karnal.  My  mother  started

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living with me at Karnal.  It may be that the house was sold in the year 1980 and the sale proceeds were utilised by  opening  a  kiryana  shop,  which  was  closed  by  me, because I did not like that business. After winding up my kiryana shop, I came to Ambala Cantt and settled with my mother.  It  is  wrong  to  suggest  that  I  misutilised  the amount and so was having no option except to close the business  and  come  back  to  Ambala  Cantt.……I  have been  serving  as  Manager  in  hotels,  namely  Hide  Out Tourist  Complex,  Palwal  and  Standard  Hotel,  Ambala Cantt…. I was working with Camlin Ltd. Bombay but was posted at Ludhiana as Sales Promotion Organizer (North) for a period of about 3½ years. It is wrong to suggest that I committed a fraud at Ludhiana and my services were terminated  accordingly. It  is  incorrect  to  suggest  that  I have been getting different Jobs with the efforts of Tirloki Nath deceased alone. I joined Veeto Hobbies Ambala for some time as Manager Marketing. It is wrong to suggest that I also committed a fraud and so my services were terminated.….I started my factory at Ambala Cantt. That factory was closed after two years.…..It is correct that I obtained bank loan for running my factory but not due to the  efforts  of  Tirloki  Nath.  There  was  no  surety.  It  is incorrect  to  suggest  that  I  pressurized  Smt.  Gargi  to stand  as  a  guarantee  against  bank  loan,  and  on  the refusal of Smt. Gargi, my brother Tirloki Nath stood as a guarantee. I have made payment of loan more than half the amount taken by me.….  

…..It is incorrect to suggest that one Mr. Narang had filed civil  suit  against  me and the company and which case was won by me. It is incorrect to suggest that Mr. Tirloki Nath  had  made  payment  to  Mr.  Narang  and  got  the matter settled.  Tirloki  Nath might have come ten days, fifteen days prior to 28.4.1997, as he was constructing a house at Ambala Cantt. He used to complain against the behaviour of his wife. It is incorrect to suggest that the house was not being got constructed at Ambala Cantt by Tirloki Nath for himself but was being constructed for the residence of the mother ….”

3.2.2. In his further cross-examination on behalf of the appellant, this

witness stated as under: -

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“…….There  was  only  one  ancestral  house  at  Model Town,  Ambala  City  (Adarsh  Nagar).  There  is  no  other immoveable (ancestral)  property.…….I  do not  know for how many days Tirloki Nath used to remain on tour in a month. It is correct that he was going on tour oftenly..… On 28.4.97, I went on tour after meeting my brother…I did not give any telephonic call to him in the night time of 28.4.97 or even in the day time as to why he had not reached  Ambala  Cantt  with  his  luggage,  as  told  by him….I  never  enquired  either  on  29.4.97  or  thereafter from Tirloki Nath for his not coming to Ambala Cantt with luggage……We talked to the Police officials for about 15 minutes in order to know the facts of the case. Thereafter we went up-stairs, and started weeping and crying. 2/3 ladies  two  brothers  of  Smt.  Gargi,  one  uncle  of  Smt. Gargi, and aged person were present at the time, when we  reached.  The  children  of  Gargi  were  also  present there at the first floor. No person was sitting with the dead body  of  Tirloki  Nath  at  the  time  we  had  gone  there- (volunteered). In the morning time about 25 persons from the  neighbourhood  had  also  come  there,  after  my statement  was  recorded  by  the  ASI.…..I  do  not  know whether the tenants on the ground floor came in the year 1990 and litigation with them started in the year 1991….I do  not  know  whether  the  house  at  Panchkula  was constructed with the joint income of Tirloki Nath and Smt. Gargi….It is incorrect to suggest that I was after Tirloki Nath to get money even after pledging the house. It  is incorrect  that  there  was  any  pledging  of  the  house  in question and there was any opposition from Smt. Gargi in this  regard….It  is  incorrect  to  suggest  that  in  order  to grab the house, I have falsely named the accused in this case...”.3  

3.3. PW-8  Radha  Puri  (sister  of  the  deceased)  purportedly

corroborated  the  testimony  of  PW-7.  The  relevant  parts  of  her

assertions in the examination-in-chief could also be usefully extracted

as under:-

3 There had been further cross-examination of this witness PW-7 on behalf  of the other accused persons where he was,  inter alia, confronted with his police statements which did not carry some of the assertions made in the Court.  However, all the major aspects of his testimony having occurred in the extraction hereinabove, the other parts of his testimony in further cross-examination are not being extracted.

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“…..Tirloki  Nath  had  come  to  Yamuna  Nagar  on 25.1.1997 and met us.  He was very much disturbed and upset at the time.  He told me that there used to remain tense situation at every time in the house because Smt. Gargi wanted that the house at Panchkula should be got mutated in the name of Smt. Gargi.  He further was told that he was afraid of Smt. Gargi and her brothers and he apprehended danger to his life….He stated that he was residing in a room at the top floor of the house and was getting meals from the Hotel. Tirloki Nath had stated that 2/3  times,  he  was  attacked  by  Smt.  Gargi  and  the children  and  that  he  had  saved  himself  some-how  or other.   Tirloki  Nath  stated that  Smt.  Gargi  was having illicit relations and she never told where she used to go. He stated that on an enquiry from Smt. Gargi, she always replied  that  he  was  having  no  concern  to  ask  such questions.   According to Tirloki Nath, he was not allowed even to use bath-room facility.  He was using bath-room of the tenants on the ground- floor.  However, we pacified him.  We were never allowed to visit our brother Tirloki Nath at Panchkula by Smt. Gargi.

On  1.5.97,  I  came  to  know  through  my  brother  Brij Bhushan that Tirloki Nath had committed suicide.  He told that  as  per  the  information,  the  neighbourers  at Panchkula told that Tirloki Nath had committed suicide. So, I alongwith others reached Panchkula, and saw Smt. Gargi, her brothers and sisters enjoying tea at the second floor of the house.  I thought that my brother had gone to Hospital  and was saved and that  was the reason that they were enjoying the tea. Thereafter, the police came and we went  up-stairs,  where the dead body of  Tirloki Nath was found hanging with a ceiling fan.…. I suspect that Smt. Gargi alongwith her brothers had murdered my brother Tirloki Nath.”  

3.3.1. In her cross-examination on behalf of the appellant, this witness

PW-8 Radha Puri stated, inter alia, as under: -  

“On 1.5.97, at night time about 11 PM, I was sleeping and my  husband  awoke  me  and  told  after  hearing  the telephone that Tirloki Nath was no more in the world and started weeping….. I myself, my husband, my brother Brij Bhushan,  and  his  wife  and  my  mother  then  went  to

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Panchkula during night time…..Some police officials were sitting at the entrance of the gate of the house. ….Firstly we went to first floor, where we saw Gargi, her brothers, children and relatives to whom I do not know. There was no person from the mohalla, where the policemen were sitting. …..I do not know whether house No. 1297, Sector 15, Panchkula was built out of the joint income of Smt. Gargi  and  her  husband  Tirloki  Nath.   I  do  not  know whether Gargi had taken any amount by way of advance from the Govt. or not.   

……….I  do  not  know  whether  Smt.  Gargi  and  her husband were having cordial relations or not in the year 1994,  when I  visited her  because I  stayed there for  a night and did not talk much, as the friend of Smt. Gargi and her children alongwith her husband had come there. I do not remember the names or antecedents of those persons.  On 25.1.1997 when my brother Tirloki Nath had come to Yamuna Nagar, I found him very much disturbed and  he  talked  to  me  regarding  the  behaviour  of  Smt. Gargi.  I was alone. I narrated the facts to my husband in between the period from 25.1.97 to 1.5.97. I did not tell the  aforesaid  facts  to  any  one  else.  It  is  incorrect  to suggest that Brij Bhushan my brother was helped in his education, service and in his up-bringing by Tirloki Nath deceased.  It is correct that the ancestral house was sold by  my  brother  Brij  Bhushan.   However,  it  is  wrong  to suggest that he misappropriated the sale proceeds of the house.  I do not know when the house was sold.  I do not know whether Tirloki Nath was having any plot in Ambala Cantt or not.  Again said, the plot at Ambala Cantt is in the name of my mother.  Again said, I cannot say exactly in whose name it is…It is correct that I did not make any verification from any quarter regarding illicit  relations of Smt. Gargi, as told by my brother Tirloki Nath.  I believed my brother what Tirloki Nath stated to me regarding the ill-treatment meted to him from Smt. Gargi.  This was also told by my mother.  My brother had told all about this to all  the family members  (sic).….I enquired from Vaishali daughter of Tirloki Nath as to how Tirloki Nath had died. She  did  not  tell  even  a  word,  though  I  was  crying throughout.  Vaishali  told  me  as  to  why  we  had  come there because we were not called there..…...”4

4 There had been further  cross-examination of  this witness also on behalf  of  the other accused persons where she was, inter alia, confronted with her police statements which did not carry several of the assertions made in the Court. However, all the major aspects of her

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3.4. ASI Amar Singh led in evidence as PW-9. He had arrived at the

spot after having received the information about the death of  Tirloki

Nath.  As  regards  the  mode  and  time  of  receiving  information,  this

witness  stated  that  “a  telephonic  message  was  received  that  one

person  in  House  No.  1297,  Sector  15,  Panchkula  had  committed

suicide. This information was received at 11.15 PM.”   In his cross-

examination, PW-9 stated, inter alia, as follows:-

“…Smt. Gargi and her children were on the first floor of the house, whereas the dead body was on the top floor of  the  house.  I  did  not  record  the  statement  of  Smt. Gargi  and  her  children.  I  have  been  making  formal investigation before the arrival of complainant etc. I have not  kept  any record qua the formal  investigation.  The neighbourers did not come to the spot, though they were found by me standing in the street. I did not call any one. I  have  been  giving  information  to  the  officers  on telephone.…..I  did  not  join  any  independent  witness from the locality…”

(underlining supplied)

3.5. Inspector  Jag  Parvesh,  who  carried  out  major  part  of

investigation, was examined as PW-10 and stated in his examination-

in-chief  that  he  reached  the  hospital  on  02.05.1997  where  he  was

handed  over  the  statement  EX.PH as  made  by  PW-7;  the  inquest

report Ex.PH/2 prepared by PW-9; and the post-mortem report EX.PA.

He drew up the necessary proceedings;  recorded statements under

Section  161  of  the  Code  of  Criminal  Procedure  Code  ('CrPC');

testimony having occurred in the extraction hereinabove, the other parts of her testimony in further cross-examination are not being extracted.

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collected blood from the spot; and arrested the appellant.  In his cross-

examination, this Investigating Officer stated, inter alia, as under: -  

“…….I made verification from the locality regarding the character  of  Smt.  Gargi  but  did  not  record  any statement. I  do  not  remember  the  names  of  those persons.

I verified from 5/10 persons of mohalla. I did not mention this  factum in  the  report  u/s  173  Cr.PC. Report  was prepared  by  the  then  SHO.  …I  interrogated  Gargi accused while in custody. She had told that  she was innocent  and  had  not  committed  any  offence…Gargi accused  had  told  me  that  she  was  not  having  any dispute  with  her  husband  and  was  having  cordial relations.  I joined the children of Gargi accused in my investigation. I have not recorded their statements and as such, no record is there. The interrogation of Gargi was recorded in the zimini.  I did not take finger prints from the rope. I had not at all taken finger prints from any other place where the dead body of Tirloki Nath was found.  However, Finger Print  Expert  visited the place. None has told me that Brij Bhushan complainant used to harass  Gargi  and  Tirloki  Nath  to  extract  money  from them. It is correct that the stairs in the house are outside the door. If the door is closed, none can notice who is coming  down  and  who  is  coming  up. I  investigated regarding the visitors in the house during the 3/4 days prior to the 2.5.97 and I had come across one Pandit who visited that  house during this  period.  Smt.  Gargi told that one Pandit was brought for performing Havan. I made verbal enquiries from the neighbourhood. ……

……I had recorded statements of  other witnesses i.e. mother,  sister  and  brother-in-law  of  deceased  in  the hospital. …There is a direct stair case from the ground floor to the top floor of the house of Gargi and one can go upstairs and come down stairs without entering any room on the first floor…..”

(underlining supplied)

13

3.6. PW-2  H.S.  Narula,  the  Deputy  Manager,  Oriental  Insurance

Company, Sector 22, Chandigarh was examined by the prosecution to

testify  that  the deceased was working in his  Company as Assistant

Administrative Officer, who lastly attended the Office on 28.04.1997. In

his  cross-examination,  this  witness  admitted  the  fact  that  deceased

Tirloki Nath used to remain on tour for about two weeks in a month.

3.7. PW-3 Manohar  Lal,  who was  working  as a  constable  in  S.P.

Office, Ambala drew up the site plan Ex. PD of the place where the

body of deceased was found. In his evidence, PW-3 pointed that there

was a bathroom-cum-toilet, attached with the room on the second floor.

The site plan of second floor (Ex. PD) shows about 10 feet x 3 feet

space marked as bath/toilet.

3.8. PW-4 Sant Lal Gupta, the then Assistant Audit Officer, AG Audit,

Punjab, Chandigarh testified to fact that the appellant was working as

Senior  Auditor  in  his  office;  that  she  was  on  casual  leave  on

28.04.1997  and  29.04.1997;  and  that  she  attended  the  office  on

30.04.1997  and  01.05.1997.  In  his  cross-examination,  this  witness

expressed want of knowledge if the appellant often used to come to the

office with her husband and used to leave after office hours with her

husband.  This  witness  also  stated  that  ‘no  complaint  was  received

from  the  side  of  husband  of  Smt.  Gargi  or  any  other  relation  of

husband of Smt. Gargi against Smt. Gargi’.

14

3.9. The other witnesses examined by the prosecution had been PW-

5 Head Constable Ramesh Kumar; PW-6 UGC Baldev Singh; PW-11

Shashi, who took the photographs at the site; and PW-12 SI Ishwar

Chander, who also partly investigated the case.   

4. On behalf of the appellant, several features of the prosecution

evidence have been highlighted with the contentions that  there had

been stark inconsistencies, contradictions, improvements and twists in

the testimonies of PW-7 and PW-8; and that there had been several

failings  in  the  investigation.  We  shall  refer  to  these  features  and

contentions hereafter a little later.  

Defence Version and Evidence  

5. The appellant in her statement under Section 313 CrPC stated,

inter alia, that her husband had informed about his going on a tour on

29.04.1997; and that she had taken casual leave on 28.04.1997 and

29.04.1997 on account of her ill-health. She also stated that she and

her husband were having cordial relationship and would share the bed

with  their  son.  She  also  stated  that  the  case  against  her  was  a

motivated one and that she was not guilty of committing the murder of

her  husband.  Some  of  the  answers  given  by  the  appellant  in  her

statement  under  Section  313  CrPC  may  be  usefully  extracted  as

under:-  

15

“Q:5 It is further in evidence against you that Tirloki Nath used to reside at the top floor as you have not allowed him to reside with you and your children. He was using independent cylinder in his room to prepare tea and he had  further  told  that  once  you  had  opened  the  gas cylinder in order to kill him. What have you to say?

Ans: It is incorrect. He was residing with the family on the first floor. I and my husband have one common bed room and my son Vaibhav was also sleeping with us in the same bed room.  

The  top  floor  was  never  used  for  residence purposes. The same was being used as a store & for some time a family friend used to stay there.

Q:6 It  is  further  in  evidence  against  you  that  on  the night of 1.5.1997 at about 11.30 p.m. Brij Bhushan PW received  a  message  that  his  brother  Tirloki  Nath  at Panchkula was no more and that he was murdered. He gave  a  telephonic  message  to  his  relatives  and  he alongwith his brother in law A.C. Puri, Sister Smt. Radha Puri, mother Raj Kumari and his wife Meenakshi went to Panchkula  and  found  two  ASI  were  sitting  outside  the said house. What have you to say?

Ans: It  is incorrect.  I  advised Mr. Bhutt  a colleague of deceased  Tirloki  Nath  to  telephonically  inform  all  the relations and friends and Mr. Bhutt gave the information of death to Mr. Brij Bhushan.

*** *** ***

Q:8 It is further in evidence against you that the police of  P.S.  Sector-19  Panchkula  received  an  information regarding that the dead body of Tirloki Nath was hanging with the ceiling fan in House No. 1297/15, Panchkula. ASI Amar Singh alongwith other police officials reached the spot and informed the relatives of the deceased. He also summoned the photographer, who took snaps of the spot. Negatives are Ex. P6 to Ex. P8 and positives are Ex. P9 to Ex.P11.

Ans: It is incorrect. In fact, the police did not reach the spot but was brought by Mr. Bhutt.

*** *** ***

16

Q:12 It is further in evidence against you that Tirloki Nath deceased attended his office on 28.4.1997. Thereafter he did not come to the office and you remained on casual leave  on  28.4.1997  and  29.4.1997  and  attended  the office on 30.4.1997 and 1.5.1997. Letter to this effect is Ex.PE. What have you to say?  

Ans: It  is  incorrect.  However,  on  29.4.97  morning  my husband  informed  me  that  he  was  to  go  on  tour  and would be back on 3.5.97, in the evening & he would go to Ambala also before coming to Chandigarh/Panchkula.  I was sick on 28th & 29th April, 97.

*** *** ***

Q:15 Why this case has been made against you and why the witnesses are deposing against you?

Ans:- This is a false case and PWs have deposited (sic) falsely. The case has been made up at the instance of Brij Bhushan  who  wanted  to  grab  the  property  of  my husband.

Q: Do you want to say anything else?

Ans:- I am innocent. I have been falsely implicated in the case by Brij  Bhushan & his  sister  who wanted  money from me at the time when I was taken by the police in the morning of 2.5.97.”

5.1. Four witnesses were examined in defence. One of the relevant

witness  had been DW-3 Surinder  Kumar  Bhat,  said  to  be  a  family

friend and colleague of the deceased. The relevant assertions of this

witness in the examination-in-chief read as under: -

“I knew Tirloki Nath deceased for the last about 18 years. I belong to J&K State. Tirloki Nath was also of that place. So, I knew him well. He was working in our office but at the time of death, he was in Sector 22 branch of our Insurance Co. in Sector 22, Internal Audit cell of our Insurance Co. is located where deceased was working at the time of death. The house of Tirloki Nath is at a distance of  1½ furlongs from  my  house  in  sector  15,  Panchkula.  I  was  having friendly  as  well  as  homely  relations  with  Tirloki  Nath deceased. I know Smt. Gargi accused present in the court.

17

She  is  the  wife  of  Tirloki  Nath  deceased.  Whenever  I visited the house of  Tirloki  Nath,  I  always found cordial relations between Tirloki Nath and Smt. Gargi Devi. Tirloki Nath  never  complained as  a  friend  to  me against  Smt. Gargi. So far as I can say, Smt. Gargi is enjoying a good reputation  in  the  Mohalla.  I  know  Brij  Bhushan,  the younger  brother  of  Tirloki  Nath  deceased.  Tirloki  Nath used  to  remain  disturbed  because  his  younger  brother always  demanded  money  from  him.  I  know  that  Tirloki Nath deceased had helped Brij Bhushan in getting some employment for Brij Bhushan in J&K State about 9 years back with great efforts. We have formed a society known as General  Insurance Employees Cooperative Thrift  and Earner Society. I am the Vice President of the said society. Tirloki  Nath  in  mid  April,  1997  met  me  alongwith  his brother  Brij  Bhushan  and  wanted  some  loan  from  our society. But  I  could  not  help  due to  certain  obligations, which could not be met with. I came to know at 6.30 – 7 PM on 1.5.97 that Tirloki  Nath had committed suicide. I went  to  the  house  of  Tirloki  Nath.  There  were  many persons collected then. I went to Police Station, Industrial Area, Panchkula to report the matter at 9.30 PM on 1.5.97. Smt. Gargi after my meeting with her, gave me telephone numbers  for  giving information to the relations of  Tirloki Nath deceased at Ambala. At about 11 PM, the information was conveyed to Brij Bhushan who reached Panchkula at 4 AM on 2.5.97. Two-three police officials came alongwith me  at  the  residence  of  Tirloki  Nath  deceased…..  I remained throughout the night of 1.5.96  (sic) and left for my house at 6.30 AM on 2.5.97. No photographer came there in my presence. I did not notice any gas cylinder in the room where the dead body of Tirloki Nath was found. The house of Tirloki Nath is two storeyed building having ground floor in addition. Some tenant was residing at the ground floor at the time Tirloki Nath had died. That tenant has not vacated the house, though not residing now. There are outer stairs upto second storey and one can go up- stairs without entering into the ground floor and first floor. There is  gate of  grills  in  between ground floor  and first floor. It is correct that the lock of the gate can be opened from both the sides viz. from inside as well  as from out side…..”

5.1.1. This witness was thoroughly cross-examined by the prosecution

where he stated, inter alia, as under:-  

18

“I  treat  Gargi  accused  as  my  Bhabi  being  wife  of  my deceased  friend-  Tirloki  Nath.  We  have  kept  complete record of our credit society. Tirloki Nath did not give any application in writing for raising loan from our society….. It is  incorrect  to  suggest  that  deceased  alongwith  Brij Bhushan never  came to  me for  any  demand of  loan  a month prior to the occurrence and I am deposing falsely just to support accused…..I have not kept any slip where I noted  down  the  telephone  numbers  of  Ambala  for information the relations of Tirloki Nath deceased…….It is correct that if  the gate in between first floor and ground floor is locked from both sides, no one can go up-stairs. At the time I reached the house of Tirloki Nath, the gate was open and people were coming and going from there. No one told that the lock or bolt of the grill  gate of upstairs was broken by some one. It is also correct that Tirloki Nath with my assistance succeeded in getting employment for his  brother Brij  Bhushan in J&K State about  nine years back.  This  he  did  being  a  brother.  I  did  not  help  Brij Bhushan thereafter. …..It is incorrect to suggest that Tirloki Nath deceased was residing all alone in the upper room of the house and was not residing with his family members. In fact,  he was residing with his family members on the first  floor. It  is  incorrect  to suggest  that  Smt.  Gargi  was harassing her husband unnecessarily with the help of her brothers on one pretext or the other……”

5.2. DW-4  Akhilesh  Bhatnagar,  Assistant,  Oriental  Insurance

Company, Chandigarh was examined in relation to the tour programme

of the deceased Tirloki Nath from 06.01.1997 to 31.01.1997 and the

hotel  expenses  bills  paid  by  the  Company,  which  show  that  the

deceased was at Karnal from 14.01.1997 to 01.02.1997. The testimony

of other witnesses DW-1 and DW-2 is not relevant for the purpose of

this appeal as they were examined in relation to the plea raised by the

co-accused persons as regards their employment.  

The Trial Court found all the accused persons guilty

19

6. The Sessions Court, in its judgment and order dated 09.06.1998,

accepted  the  prosecution  case;  and  while  rejecting  the  contentions

urged on behalf of the accused, held that the chain of circumstances

was  established by  the  prosecution,  bringing  home the  guilt  of  the

accused persons. The Trial Court, accordingly, convicted them for the

aforementioned  offences  of  criminal  conspiracy  and  murder  and

awarded sentence of rigorous life imprisonment together with fine of

Rs. 2,000/- each with default stipulations.  

6.1. The Trial Court concluded that the deceased was done to death

by way of strangulation, essentially on the basis of medical evidence

and with reference to the position of the hanging dead body and other

features at the spot, like the one that door of the room in question was

not bolted from inside. The finding that the appellant had committed the

offence with her brothers in the intervening night of 28/29.04.1997 got

its basis, inter alia, in the statement allegedly made by the deceased to

PW-7 prior to his departure from Ambala Cantt. where he expressed

fear of his life, as also in the facts that the appellant had taken leave

from her office for 28.04.1997 and 29.04.1997 and that the appellant

and her brothers were not grieving when the body of the deceased was

found.

The  High  Court  affirmed  the  conviction  of  appellant  while

acquitting her brothers  

20

7. The appeals preferred by the appellant and her brothers against

the judgement and order aforesaid, being Criminal Appeal No. 341-DB

of  1998 and Criminal  Appeal  No.  359-DB of  1998,  before the High

Court of Punjab and Haryana at Chandigarh were considered together

and decided by the common judgment  dated 05.03.2008.  The High

Court  held  that  it  had  been  a  case  of  homicide,  essentially  with

reference to the medical  evidence and the features of  the scene of

crime. The High Court also held that the culpability of the appellant

stood  established  in  view  of  the  circumstances  that:  (a)  when  the

appellant was sharing the same bedroom with deceased Tirloki Nath,

the onus was heavy upon her to explain the circumstances leading to

the  death  of  her  husband,  which  she  failed  to  discharge;  (b)  the

appellant  had  the  motive  to  murder  her  husband  when  there  were

strained  relations  between  them  and  the  deceased  had  expressed

apprehension to be done to death by the appellant; (c) the subsequent

conduct of the appellant was also questionable, where she was found

taking tea with her brothers on the first floor although the dead body of

Tirloki Nath was hanging by rope in the Chaubara at the top floor; (d)

and the appellant  did not  send any information to the brothers and

other relations of  Tirloki  Nath immediately  after  noticing his demise.

The High Court, however, rejected the prosecution case that brothers

of  the  appellant  had  conspired  with  the  appellant  to  carry  out  the

murder and hanging of the deceased Tirloki Nath. Even after rejecting

21

the prosecution case against brothers of the appellant, and even after

finding that the crime in question was not the handiwork of one person,

the High Court  proceeded to observe that  the appellant  was rightly

convicted  in  the  matter  as  the  principal  offender,  though  the

investigating  agency  failed  to  find  out  the  other  persons  who  were

accomplice in this crime. The High Court also observed that the Trial

Court had discussed threadbare the defence evidence and had rightly

disbelieved  the  testimony  of  DW-3  Surinder  Kumar,  who  was

introduced by the appellant as an afterthought.  

7.1. With  the  aforesaid  findings  and  observations,  the  High  Court

upheld the conviction of the appellant but acquitted her brothers on the

ground that there was no evidence on record to prove the existence of

any conspiracy to murder the deceased.  The High Court,  inter  alia,

observed and held as follows:

“21. …..Tirloki Nath was sharing the same bed room, in which Gargi Devi used to sleep, as stated by her in her statement under section 313 Cr. P.C. The dead body of Tirloki Nath was found hanging in the same house, in the chaubara.  Thus, heavy onus lay on Smt. Gargi to explain the circumstance, leading to his death.  She only stated, in her  statement  under  section  313 Cr.  P.C.  that  she  was falsely implicated, in the instant case, and that the entire investigation, was at the instance of Brij Bhushan, PW.7. She, therefore, did not furnish any explanation, with regard to the circumstances, leading to the death of Tirloki Nath. This clearly proved her culpability.

*** *** ***

23. There were strained relations, between Tirloki Nath and his wife.  From the statement of Brij Bhushan, PW-7 and Radha Puri, PW-8 it was proved that Tirloki Nath was

22

tense and upset, as he was being ill treated by his wife.  It is has also come in the statement of Radha Puri, PW-8, that Tirloki Nath was fearful that he would be killed one day.  When Tirloki Nath met Radha Puri, his sister, and his brother-in-law,  in  Ambala  he  told  them  that  he  was apprehending danger to his life at the hands of Smt. Gargi his  wife.   Even,  it  is  evident,  from the statement  of  Brij Bhushan, PW7, that Tirloki Nath was being ill-treated by his wife Smt. Gargi.   Even on 28.4.1997 in the morning when  Tirloki  Nath  left  the  house  of  Brij  Bhushan,  at Ambala,  for Chandigarh, he told him that it  was his last visit  to  Panchkula,  as  he  would  be  coming  with  his luggage,  to  permanently  settle  at  Ambala,  as  he  was fearing that he would be done to death by his wife Smt. Gargi.  These last words spoken by him to his brother, Brij Bhushan on 28.4.1997 in the morning, as stated above, fall within the purview of his dying declaration. It was on account of the strained relations, between Triloki Nath has his  wife  Smt.  Gargi  that  she  committed  her  murder  by strangulating  him  and  thereafter  hanged  his  body  with ceiling fan (sic).  Smt. Gargi was definitely having a motive to  commit  the  murder  of  Triloki  Nath,  for  the  reasons referred  to  hereinbefore.  The  motive  plays  a  very significant  role,  in  case,  which  is  based  on  the circumstantial  evidence.   The  culpability  of  Smt.  Gargi, accused is thus proved.

*** *** ***

29. No doubt,  it  may be said that the commission of crime,  in  this  case  could  not  be  the  handwork  of  one person only. Smt Gargi might have taken the help of some other  persons,  in  hanging  the  body  of  Tirloki  Nath, deceased after strangulating him, but it was not proved as to who those persons were. As stated above, it was also not proved that accused Shuhabs Tiwari, Ramesh Tiwari and Rajneesh Tiwari hatched conspiracy with Smt. Gargi and in pursuance thereof committed the murder of Tirloki Nath. Who were those persons, was for the Investigating Agency to find out. Even if, the Investigating Agency, failed to find out  those persons,  Smt.  Gargi  could not absolve herself  of  the  liability.  Smt.  Gargi  being  the  principal offender  was  rightly  convicted  and  sentenced  for  the commission of offence punishable under section 302 IPC"

(underlining supplied)

23

Rival Contentions  

8. Assailing the judgment and order aforesaid, learned counsel for

the  appellant  has  strenuously  argued  that  the  appellant  has  been

falsely implicated in this case by her in-laws, whose main aim was to

grab  the  property  of  the  deceased,  while  the  actual  culprits  have

escaped the prosecution. The learned counsel has elaborated on the

submissions that the relations between the deceased Tirloki Nath and

his  brother,  PW-7  Brij  Bhushan  (the  complainant)  were  strained

because of property dispute for, at one point in time, their mother had

bequeathed all the properties in favour of the deceased, which was not

appreciated by the complainant and the deceased got the property at

Ambala Cantt. registered in his name just a month prior to his untimely

demise. The learned counsel has referred to the statement made by

the appellant under Section 313 CrPC to submit that the appellant and

deceased  were  married  for  about  18-19  years;  their  relations  were

cordial;  and  they  were  leading  a  happy  married  life.  The  learned

counsel  has  particularly  referred  to  the  statement  made  by  the

appellant  that  she  and  her  deceased  husband  were  sharing  the

bedroom with their son and that the room on the top floor of the house

was not used for any other purpose except as a store.  

8.1.  The learned counsel has also argued that if  the complainant

(PW-7)  was  aware  on  28.04.1997  that  the  deceased  apprehended

some form of danger to his life and the deceased had stated that he

24

would be returning with his baggage, it remains inexplicable that this

witness  did  not  make  any  effort  to  find  the  whereabouts  of  the

deceased for  a  period  of  three  days  and  until  he  got  the  news  of

demise.  The learned counsel  has also attempted to submit  that the

complainant  had  several  vices;  that  several  criminal  cases  were

pending  against  him;  and  his  family  members  had  published  a

newspaper advertisement that anyone dealing with him shall be doing

so at his own risk.  

8.2. The learned counsel would submit that the case at hand hinges

around  circumstantial  evidence  but  there  is  no  connecting  link  to

associate  the  appellant  to  the  murder  of  her  husband;  and  the

prosecution has failed to prove the motive of the appellant. The learned

counsel for the appellant has also argued that there were lapses on

part  of  the  police  while  collecting  evidence  where  the  FIR  was

registered only after the arrival of complainant and his family members

and the statements of  the persons who had gathered at  the scene

were not recorded at all.  

8.3. The learned counsel has also assailed the findings that it  had

been a matter of strangulation and hence of a homicidal death with the

submissions  that  as  per  medical  jurisprudence,  in  case  of

strangulation, some scratches, abrasions, bruises etc. would be found

on the dead body and hyoid bone would be found broken but, in the

present case, there were no such marks nor hyoid bone was broken.  

25

8.4. The learned counsel has further contended that strangulation of

the deceased and then, hanging of his dead body from the ceiling fan

could not have been carried out by one person alone and it remains

entirely improbable that such tasks were carried out by a frail lady like

the appellant. Thus, according to the learned counsel, with the acquittal

of  brothers  of  the appellants,  the alleged chain  of  circumstances is

broken on the material point and the appellant deserves to be acquitted

on this count alone.  

8.5. The learned counsel  for  the appellant  has referred to several

decisions of this Court, including those in Rajkumar v. State of M.P.:

(2004) 12 SCC 77; Sonvir alias Somvir v. The State (NCT of Delhi):

(2018) 8 SCC 24; Ramesh and Ors v. State of Rajasthan: (2011) 3

SCC 685;  SK. Yusuf v. State of West Bengal: (2011) 11 SCC 754;

and Sawal Das v. State of Bihar: (1974) 4 SCC 193.

9. Per contra, learned counsel for the respondent has duly opposed

the submissions made on behalf of the appellant with reference to the

evidence on record and the finding recorded by the Trial Court and the

High Court.  

9.1.  So far  as the question as to  whether  it  had been a case of

homicide or the deceased had committed suicide, learned counsel has

argued that in case of suicide, the dead body would be in a suspended

position, feet would not reach the floor and knees would also not bend,

26

as found in the present case. The learned counsel has supported the

finding of the Trial Court that in almost all cases of suicide, the door

would be closed from inside rather than being left open, as had been

the scenario of the present case. Learned counsel has also highlighted

that  it  was  not  a  mere  coincidence  that  the  appellant  remained  on

casual leave during the very period when the deceased was done to

death;  and  when  the  deceased  was  admittedly  seen  last  in  the

company  of  the appellant  on 29.04.1997 and when his  corpse was

found hanging in their own house on 01.05.1997, burden was heavy

upon her to explain if the deceased had gone anywhere else, but she

has altogether failed to discharge such a crucial burden. In the totality

of  circumstances,  according  to  the  learned  counsel,  the  conclusion

remains  inevitable  that  the  appellant,  with  her  accomplice,  had

strangulated the deceased and hanged him by a rope to cover-up the

scene as that of suicide.   

9.2. In  relation  to  the  argument  that  the  complainant  had  not

attempted to contact the deceased for the three days after he had left

Ambala Cantt.,  despite being aware that the deceased apprehended

danger to his life, learned counsel for the respondent has argued that

the  incident  took  place  in  the  year  1997  when  mobile  phones  and

connectivity  was  not  available  to  all  and  there  was  no  telephone

connection on the top floor of the house. Thus, according to the learned

27

counsel, in the given circumstances, mere want of efforts on the part of

PW-7 to contact his brother would not falsify the prosecution case.  

9.3. The  learned  counsel  for  the  respondent  has  vehemently

contended that the factors like some minor and irrelevant variations in

the  statement  of  prosecution  witnesses  or  want  of  some  additional

evidence  are  of  no  effect  because  the  material  aspects  stand

established  on  record;  and  all  the  proved  circumstances  form  a

complete  chain,  ruling  out  any  other  hypothesis  except  guilt  of  the

appellant and hence, she has rightly been convicted.

Preliminary Observations

10. Having given anxious consideration to the rival submissions and

having  scanned  through  the  entire  record  with  reference  to  law

applicable, we are impelled to say at the outset of discussion that in

this matter, several fundamental shortcomings in the investigation and

several loopholes in the prosecution propositions got overlooked by the

Trial Court as also by the High Court. In an overall comprehension of

the matter, we are clearly of the view that it would not be safe to accept

the  projected  propositions  of  the  prosecution  and  to  convict  the

appellant for the offence of murder of her husband.  

The circumstances relied upon and the point for determination

11. It is at once clear that in this case, no direct evidence is available

in answer to the material questions as to how the deceased, husband

28

of the appellant, met with his untimely death; and if it were not a case

of suicide, who had carried out the gruesome and ghastly act of killing

him and hanging the dead body in his room? The Trial Court and the

High Court have held that the major circumstances projected by the

prosecution  against  the  appellant  have  been  established  beyond

doubt, though the High Court has not accepted the prosecution case

that the brothers of appellant were conspirators and collaborators in

the crime. It is contended on behalf of the appellant that it had been a

case of suicide; that there was no motive on the part of the appellant to

eliminate her husband with whom she was having cordial relations and

was leading a happy married life; that the deceased and the appellant

were lastly in each other’s company on 29.04.1997 when the deceased

informed her that he shall be going on tour and would be returning by

03.05.1997; and that the appellant’s prosecution was fenagled by the

brother of her husband, who was having an eye on the property. On

the other hand, according to the prosecution, the crucial circumstances

stand established that the homicidal death was covertly sought to be

shown as a case of  suicide;  that  the appellant  had the motive and

intent to kill her husband; that the deceased was lastly in the company

of the appellant; and that the appellant failed to offer any explanation

as to how her husband got killed and was hanged though the dead

body was found in the same house where deceased was residing with

her.  

29

11.1. In other words, what is argued in this case for the prosecution is

that  the  entire  chain  of  causation  has  been established  beyond all

reasonable doubts.  It  is  submitted that  the evidence on record has

clearly brought forth the following major factors against the appellant:-

a) that the death of the deceased was homicidal in nature and it

had not been suicidal as was sought to be projected by the culprits by

hanging the dead body from a rope;  

b) that  the  deceased  had  strained  relations  with  his  wife,  the

appellant, for she was indulgent in illicit relations and was insistent on

transfer of property in her name;

c) that  the  deceased was having,  and had expressed,  imminent

danger to his life at the hands of his wife, the appellant;

d) that the deceased was last seen with the appellant and she had

failed to explain as to how the deceased met with his end; and  

e) that as per the post-mortem report, death had occurred 24 to 72

hours  before  post-mortem  examination  on  02.05.1997  and  the

appellant was at home during this period, as she was admittedly on

leave on 28.04.1997 and 29.04.1997.

11.2. The question is as to whether the Trial Court and the High Court

are  right  in  holding  that  the  aforementioned  circumstances  stand

established beyond reasonable doubt and do form a complete chain,

ruling out any other hypothesis except guilt of the appellant?

30

The principles governing circumstantial evidence  

12. When the present case pivots around circumstantial  evidence,

having regard to the questions involved, apposite it would be to take

note  of  a  few  fundamental  principles  governing  the  circumstantial

evidence and its appreciation.  

13. It  remains  trite  that  in  judicial  proceedings,  proof  is  made by

means  of  production  of  evidence,  which  may  be  either  oral  or

documentary. As regards its  nature,  the evidence is  either  direct  or

circumstantial. The direct evidence proves the existence of a particular

fact that emanates from a document or an object and/or what has been

observed  by  the  witness.  The  circumstantial  evidence  is  the  one

whereby  other facts  are proved from which the existence of  fact  in

issue  may  either  be  logically  inferred,  or  at  least  rendered  more

probable5.  

13.1. In umpteen number of decisions, this Court has explained the

essentials before a particular fact could be held proved by way of the

proof of other fact or facts; and has expounded on the principles as to

how circumstantial evidence need to be approached in a criminal case.

We need not  multiply  on  the  case law on the subject;  only  a  brief

reference to the relevant decisions would suffice.  

5 A Text Book of Jurisprudence by G.W.Paton, Fourth Edition, Page 598.   

31

13.2. In  the  case  of  Chandmal  and  Anr.  v.  State  of  Rajasthan:

(1976) 1 SCC 621, this Court said:-

“14. It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, these circumstances should be of a definite tendency unerringly pointing towards the guilt  of the  accused.  Thirdly,  the  circumstances,  taken cumulatively, should form a chain so complete that there is no  escape  from  the  conclusion  that  within  all  human probability the crime was committed by the accused and none else.  That  is  to  say, the circumstances should  be incapable  of  explanation  on  any  reasonable  hypothesis save that of the accused’s guilt.”  

13.3. In  the  case  of  Sharad  Birdhichand  Sarda  v.  State  of

Maharashtra: (1984)  4  SCC 116,  this  Court  laid  down  the  golden

principles  of  standard  of  proof  required  in  a  case  sought  to  be

established on circumstantial evidence with reference to several past

decisions,  including  that  in  the  case  of Hanumanth  v.  State  of

Madhya Pradesh: AIR 1952 SC 343,  in the following:-

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It  may  be  noted  here  that  this  Court  indicated  that  the circumstances concerned “must or should” and not “may be”  established.  There  is  not  only  a  grammatical  but  a legal distinction between “may be proved” and “must be or should  be  proved”  as  was  held  by  this  Court  in  Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court

32

can convict and the mental distance between ‘may be’  and  ‘must  be’  is  long  and  divides  vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not  be explainable on any other hypothesis except that the accused is guilty, (3)  the circumstances  should  be  of  a  conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to  leave  any  reasonable  ground  for  the  conclusion consistent  with  the innocence of  the accused and must show that in all human probability the act must have been done by the accused. 154.  These  five  golden  principles,  if  we  may  say  so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

13.4. In the decision cited by the learned counsel for the appellant in

Sonvir (supra), this Court, after taking note of the other cited decisions,

pointed out the principles as under:-

“82.….Law of conviction based on circumstantial evidence is well settled. It is sufficient to refer to the judgment of this Court in Ramesh v. State of Rajasthan (2011) 3 SCC 685 where in para 17 the following has been held:  (SCC p. 693)

“17. Before we proceed with the matter, it has to  be  borne  in  mind  that  this  case  depends  upon circumstantial  evidence  and,  as  such,  as  per  the settled  law,  every  circumstance  would  have  to  be proved  beyond  reasonable  doubt  and  further  the chain of  circumstances should be so complete and perfect  that  the  only  inference  of  the  guilt  of  the accused  should  emanate  therefrom.  At  the  same time, there should be no possibility whatsoever of the defence version being true.”

33

13.5. Thus,  circumstantial  evidence,  in  the  context  of  a  crime,

essentially means such facts and surrounding factors which do point

towards  the  complicity  of  the  charged accused;  and  then,  chain  of

circumstances means such unquestionable linking of the facts and the

surrounding factors that they establish only  the guilt  of  the charged

accused beyond reasonable doubt, while ruling out any other theory or

possibility or hypothesis.   

13.6. Incidental to the principles aforesaid, which are neither of any

doubt nor of  any dispute,  profitable it  would be to keep in view the

caveat  entered  by  G.W. Paton6 as  regards  circumstantial  evidence

thus:

“On the other hand, circumstances may mislead or false clues  may  have  been  laid  by  the  wrong  doer  to  cast suspicion on another”.7     

Several  loopholes  in  investigation;  withholding  of  relevant

evidence by prosecution

14. Having taken note of the point arising for determination and the

basic principles to be kept in view while dealing with this case based

on  circumstantial  evidence,  when  we  examine  the  record,  several

shortcomings  and  loopholes  in  the  investigation  and  in  prosecution

6 ibid., page 598 7 This has been stated with reference to ¶514 in Criminal Law by C.S.Kenny wherein, it is cautioned that:  though ‘circumstances cannot lie’, they can mislead. They may even have been brought about for the very purpose of misleading, as when Joseph’s silver cup was placed  in  Benjamin’s  sack,  or  when Lady  Macbeth  ‘smeared  the  sleeping  grooms with blood’.   

34

evidence manifest themselves at once. Before analysing the evidence

adduced on record, it appears rather necessary to take note of such

features of shortcomings, which are apparent on the face of record and

have a material bearing on the questions involved.   

15. In  the  present  case,  the  very  approach  of  the  investigating

agency had been shrouded in so much of unexplained obscurities that

a  question  perforce arises  if  there  had  been  a  fair  and  unbiased

investigation of the crime in question?

15.1. The  manner  of  dealing  with  this  case  by  the  investigating

agency,  right  at  the  inception,  has  left  a  few  serious  questions

unanswered i.e., as to when did the police receive information about

dead body of the husband of the appellant, by what mode, and through

whom? PW-9 in his testimony before the Court conveniently stated that

such an information was received through “telephonic message” but

did  not  state  the  particulars  of  such  informant.  No  entry  in  the

roznamcha or general diary has been produced to show that such an

information  was  duly  entered  in  the  record  before  proceeding  for

investigation.  Significantly, in the first note drawn up in the matter at

5.30  a.m.  on  02.05.1997  (EX.  PH/1),  PW-9  only  stated  that  ‘the

information was received at the police station’. The fact that it had been

a  telephonic  information  is  conspicuously  missing  in  Ex.PH/1.  This

aspect has got a material bearing in the matter because the defence

witness  DW-3  specifically  testified  to  the  fact  that  he  was  the  first

35

person informed by the appellant about the demise of Tirloki Nath; and

that he went to the police station at about 9.30 p.m. on 01.05.1997 and

divulged the information.  He further asserted having accompanied the

police to the site and having conveyed the information to PW-7.

15.2. It  is also noteworthy that as per PW-7, he got the information

from one T.R. Malhotra at about 11.30 p.m. who, in turn, had received

the information on telephone from a colleague of the deceased. Neither

any enquiry was made from the said T.R. Malhotra nor any other effort

was  made  to  find  out  the  colleague  of  the  deceased  who  had

telephoned him.

15.3. In  the face of  such a gap in the prosecution evidence,  there

appears  no  reason  to  disbelieve  the  testimony  of  DW-3  Surinder

Kumar Bhat as regards the time of information to police and himself

being  the  informant.  In  such  a  scenario,  it  remains  absolutely

inexplicable as to why the information given by DW-3 was not reduced

in writing and the proceedings were not conducted on that basis. This

question magnifies itself to tougher questions for the prosecution as to

the time when PW-9 ASI Amar Singh reached the site and with whom.

From the evidence on record and surrounding facts, it appears that the

said ASI had reached the site at around 10.30 p.m. accompanied by

DW-3 Surinder Kumar Bhat. The toughness of these questions further

amplifies  into  the  harder,  and  unanswered,  question  for  the

investigating agency as to why for a long period of about 4 to 5 hours

36

at the site, the ASI (PW-9) did not carry out any investigation and did

not record any statement.  

15.4. It  is  not  the  case  of  prosecution  that  the  ASI  (PW-9)  was

prevented  by  any  reason  to  immediately  attend  on  his  duties  after

reaching the site. It is also not the case that he attempted to make any

enquiry  from any  person  until  arrival  of  the  complainant  and  other

family members of the deceased. Even if it be assumed that the other

family members of the deceased were on the way and the ASI knew

about this fact, nothing had prevented him from attending on his duties

of  investigation.  Strangely  enough,  even  the  first  panchnama was

prepared only after reaching of the complainant. It is also not clear as

to why the statements of the children of the deceased were not taken

when his daughter, 16 years of age, was very much present at the site.

It  is  also  not  explained  as  to  why  in  this  kind  of  matter,  carrying

suspicious overtones, PW-9 did not make any enquiry from any of the

neighbours, who were available at the site; and from the tenant, who

was  residing  at  the  ground  floor  of  the  same  building  and  whose

washroom was  allegedly  being  used  by  the  deceased  (as  per  the

assertion  of  PW-8)?  It  is  difficult  to  say  that  the  conduct  of  this

Investigating Officer (PW-9) had been totally free from doubt.  

15.5. Apart from the above-noted omissions at the very initial stage,

we find absolutely no reason that the Investigating Officer PW-10, even

after allegedly making enquiries in the locality regarding the character

37

of the appellant from 5-10 persons, neither mentioned this fact in the

investigation report nor recorded the statement of anyone of them. This

Investigating Officer further stated to have joined the children of the

appellant in the investigation but did not record their statements either.

This Officer also did not bother to take the statement of the tenant,

whose testimony would have been of immense significance, looking to

the nature of accusations as also the factors related with the building in

question.  

15.6. Moreover, in this matter, where it was prima facie appearing that

the clues available at the site might play a significant role in reaching to

the  real  culprits,  it  is  also  intriguing  to  notice  that  the  Investigating

Officer did not take even elementary care to obtain fingerprints from

the  material  objects  and  to  get  them  analysed  properly.  The

Investigating Officer (PW-10) has stated, rather with impunity, that he

did  not  take  any  fingerprints  at  all,  even  while  admitting  that  the

fingerprint  expert did visit  the site. It  is not stated that the so-called

expert expressed inability to collect such prints for any reason. It is left

only  for  one  to  wonder  as  to  for  what  purpose  did  the  so-called

fingerprint expert visit the site, if no prints were to be taken at all!  

15.7. The  above-mentioned  unexplained  shortcomings,  perforce,

indicate that in this case, the investigation was carried out either with

pre-conceived notions or with a particular result in view. It is difficult to

accept that the investigation in this case had been fair and impartial.

38

From another viewpoint, on the facts and in the circumstances of this

case,  the  omissions  on  the  part  of  investigating  agency  cannot  be

ignored  as  mere  oversight.  These  omissions,  perforce,  give  rise  to

adverse inferences against the prosecution.  

16. In  this  case,  it  is  also  interesting  to  notice  that  though  the

prosecution had cited the other relations of the deceased as witnesses,

including his mother and brother-in-law (husband of PW-8 - who had

otherwise signed the inquest report)  but did not examine them before

the Court. Withholding of relevant witnesses could only lead to further

adverse inference that if examined, they would not have supported the

prosecution  case.  This  is  apart  from the  fact  that  the  investigating

agency avoided to include any independent witness in the investigation

and did not carry out necessary enquires from the persons other than

in-laws of the appellant.

17. Hereinabove,  we have only  indicated  a few broad aspects  of

shortcomings and lacunae in the prosecution case which is otherwise

resting on circumstantial evidence and on the theory propounded by

the brother of  deceased (PW-7),  as supported by his sister (PW-8).

The  upshot  of  the  discussion  foregoing  is  that  the  propositions

projected by the prosecution require deeper scrutiny to find if the case

against the appellant is established beyond reasonable doubt; and if

the  elements  of  adverse  inferences  do  not  materially  affect  the

prosecution case.   

39

Homicide or suicide

18. As noticed, the first question that concerns us in this matter is as

to whether death of Tirloki Nath was suicidal or it had been a matter of

homicide.  The  Trial  Court  as  also  the  High  Court  have  returned

concurrent findings that it had been a matter of homicidal death. Both

the Courts came to this conclusion essentially with reference to the

medical  opinion  that  the  cause  of  death  was  asphyxia  due  to

strangulation;  and  also  with  reference  to  some  of  the  surrounding

factors that the feet of the hanging dead body were touching the floor;

the knees were bent; the slippers were not removed; and the room in

question was wide open. Assailing such findings, it  is contended on

behalf of the appellant that as per medical jurisprudence, scratches,

abrasions, bruises etc. are usually present and hyoid bone would be

usually found broken in case of strangulation but, in the present case,

there were no such marks nor hyoid bone was broken.  

18.1. We have  closely  examined  the  testimony  of  PW-1  Dr.  Usha

Bansal,  who was one of  members of  the board that had conducted

post-mortem. We have also taken into account the features noticeable

from the site plan, the inquest report and the photographs placed on

record.  Having  examined  the  relevant  material,  we  find  nothing  of

infirmity in the findings of the Trial Court and the High Court that it had

been a case of strangulation, as could be seen from the post-mortem

report that the dead body carried “well defined depressed ligature mark

40

measuring  3  cm.  wide  seen  encircling  the  neck  around  thyroid

cartilage with a knot present on left side of neck and this ligature mark

was anti-mortem in nature”.  The other ligature mark was on the left

side of the neck measuring 1.5 cm wide and that was post-mortem in

nature. The board had undoubtedly been of the opinion that the cause

of  death was  “asphyxia due to strangulation”.  With such categorical

medical opinion coupled with all the relevant features surrounding the

suspended dead body in the room in question, it is difficult to say that it

had been a case of suicide merely because hyoid bone was not broken

or because the marks of resistance like abrasions/scratches were not

reported.  The presence of  marks of  resistance would  depend on  a

variety of factors, including the method and manner of execution of the

act  of  strangulation  by  the  culprits;  and  mere  want  of  such  marks

cannot  be decisive of  the matter. Equally, it  is  not  laid down as an

absolute rule in medical jurisprudence that in all cases of strangulation,

hyoid  bone would  invariably  be  fractured.  On  the  contrary, medical

jurisprudence suggests that only in a fraction of such cases, a fracture

of hyoid bone is found.8  In other words, absence of fracture of hyoid

8 Modi: A textbook of Medical Jurisprudence and Toxicology, 26th Edition page 529 where it is also noted:

“In the Journal of Forensic Sciences Volume 41 under the Title – Fracture of the Hyoid Bone in Strangulation: Comparison of Fractured and Unfractured Hyoids from Victims of Strangulation, it is stated:

The hyoid is the U-shaped bone of the neck that is fractured in one- third of all homicides by strangulation. On this basis, post-mortem detection of hyoid facture is relevant to the diagnosis of strangulation. However, since many cases  lack  a  hyoid  fracture,  the absence  of  this  finding  does not exclude strangulation as a cause of death. The reasons why some hyoids fracture and others do not may relate to the nature and magnitude of force applied to the neck, age of the victim, nature of the instrument (ligature or hands)  used  to  strangle,  and  intrinsic  anatomic  features  of  the  hyoid bone…………”

41

bone would not lead to the conclusion that the deceased did not die of

strangulation.

18.2. For what has been discussed in preceding paragraphs, we have

no hesitation in affirming the findings in the impugned judgments that

the  deceased  Tirloki  Nath  was  done  to  death  by  strangulation  and

thereafter, his dead body was hanged from the ceiling fan in the room.  

19. However,  the  question  still  remains  as  to  whether  the

circumstances brought on record establish beyond reasonable doubt

that such ghastly act of killing Tirloki Nath and hanging his dead body

was carried out by the appellant so as to maintain her conviction under

Section 302 IPC?

20. Before examining the circumstances brought on record by the

prosecution, we may observe in the passing that the Trial Court as also

the  High  Court  have  proceeded  on  the  lines  that  once  it  was

established  that  the  deceased  Tirloki  Nath  was  killed  by  way  of

strangulation and the killer/s suspended his dead body from the fan so

as to mislead; and since the dead body was found in the very house he

was residing with the appellant who could not explain the reason of his

death, she was to be held responsible for the crime.  In other words,

the Trial Court and the High Court have assumed that as soon as the

conclusion about the homicidal death of Tirloki Nath in his own room is

reached,  all  other  aspects  of  the  prosecution  story  about  so-called

42

strained relations of the deceased and the appellant, and the alleged

threat perception of the appellant  ipso facto come into operation; and

the finding on homicidal death itself has been taken as the answer to

other  question  as  to  whether  homicide  was  to  be  imputed  on  the

appellant  or  not.  In  our  view,  while  examining  the  question  as  to

whether the death in question was homicidal or suicidal, there was no

justification  to  mix  up  the  other  circumstances  projected  by  the

prosecution, which indeed required separate assessment and analysis.

Be  that  as  it  may,  appropriate  now  it  would  be  to  examine  the

circumstances put forth in this case to find if the prosecution has been

able to bring home the guilt of the appellant beyond reasonable doubt.

Alleged last statement of deceased and motive of appellant  

21. The main plank of prosecution case against appellant has been

that the relations between the deceased and the appellant were too

strained; the appellant was having illicit relations and was ill-treating

the deceased; the deceased had expressed even threat to his life at

the hands of the appellant; and the deceased was all set to move out

of  the company of the appellant.  These factors, imputing motive on

the appellant to kill her husband (and even deceased  perceiving threat

to his life at the hands of the appellant), have been held proved by the

Trial Court and the High Court with reference to the testimony of PW-7

Brij Bhushan (brother of the deceased) and PW-8 Radha Puri (sister of

the deceased).  As noticed, the Trial Court as also the High Court have

43

relied upon these two witnesses and have accepted their assertions in

toto. However, a close look at the testimony of these witnesses and the

assessment of their evidence with reference of other factors on record

bring forth several doubts, which have not been dispelled and which do

operate against the prosecution.

22. Though  learned  counsel  of  the  appellant  has  attempted  to

suggest, with reference to additional documents placed on record, that

PW-7 carried questionable antecedents and had been a proclaimed

offender  but  we are  ignoring  such  submissions  for  the  reason  that

these aspects  were not  specifically  put  to  the witness in  his  cross-

examination.  However,  the  question  is  as  to  whether  his  testimony

inspires  such  confidence  that  all  the  facts  and  the  circumstances

suggested by him, and all  his assertions, be accepted on their face

value? In our view, the answer to this question could only be in the

negative.  

22.1. The  Trial  Court  and  the  High  Court  have  proceeded  on  the

assumption that PW-7 being the brother of  deceased, would not be

interested in shielding the real culprit and to unnecessarily throw the

accusation on the appellant but, in our view, such an approach had

been  fundamentally  incorrect.  In  overall  comprehension  of  the

statement made by this witness, a few relevant factors are immediately

noticeable that, after having served in Navy for about two years from

1978 to 1980, he had never been in a settled job or occupation. He

44

served in different establishments; also opened a grocer’s shop that

was  closed;  again  served  in  some more  establishments;  and  then,

established a factory that too was closed with about half of the amount

of  loan  repaid  and remaining  being due.  Significantly, the ancestral

house of the family was sold by this witness and the proceeds were

utilised by him in opening the grocer’s shop, which was closed by him

because  he  ‘did  not  like  that  business’.  He  had  taken  loan  for

establishing the factory and it had been the case of the appellant that

he was pressurising her to stand as a guarantor and upon her refusal,

the deceased Tirloki Nath stood as a guarantor. DW-3 Surinder Kumar

Bhat,  a  colleague  of  the  deceased,  testified  to  the  fact  that  the

deceased remained disturbed for his younger brother (PW-7) regularly

demanding money from him; and has narrated in detail the efforts that

were  made by  the  deceased in  helping  PW-7 Brij  Bhushan getting

some employment  and  he  even  asked  for  a  loan  from the  society

managed by DW-3.  In the given state of affairs, this much is clear that

the testimony of PW-7 is required to be approached with extra care

and caution.   

22.2. On a closer look at the record, it is noticed that some material

improvements were made by PW-7 while deposing in the Court over

the initial version, on the basis whereof FIR was registered by PW-9.

For  example,  in  the  Court  statement,  this  witness  alleged  that  the

deceased was apprehending murder by the appellant with the help of

45

her brothers while improving over the expression that the deceased

was ‘fed up and frightened’, as occurring in the initial version. Further,

the initial  allegation that the appellant was not providing food to the

deceased ‘at proper time’ was improved in the Court statement to the

effect that she was not providing food to the deceased.  

22.2.1. Even if the aforementioned aspects are left aside for a moment

and it be assumed that the deceased met PW-7 on 28.04.1997 and

stated all his apprehensions as also the plan to leave Panchkula with

luggage, it remains entirely inexplicable that such a concerned brother

of the deceased did not accompany him to Panchkula for safety and

support; and did not share the apprehensions stated by the deceased

with other members of the family; and even did not enquire about the

welfare of his brother for next three days. Obviously, the conduct of this

witness had not  been altogether free from doubt  and his  statement

cannot be accepted without proper corroboration. Now, the attempted

corroboration is suggested only with reference to the statement of the

sister of this witness viz., PW-8 Radha Puri. However, her testimony

carries excessive features of doubts, as would occur infra.  

23. It is evident on the face of the record that in her testimony, PW-8

Radha  Puri  made  several  improvements  over  the  statement  made

during investigation. The allegations that upon reaching the spot, she

saw the appellant and her brothers ‘enjoying tea’ were not made in her

police statement. The witness had gone to the extent of stating that the

46

deceased  was  attacked  by  his  wife  and  children  on  two-three

occasions though no such allegation appeared in her  initial  version

during investigation.  It is more than apparent that the efforts on the

part  of  this  witness  PW-8  had  been  to  level  accusations  not  only

against the appellant but even against the children of the appellant,

particularly  her  daughter,  by  suggesting  that  the  said  daughter

questioned her presence on the spot though such had not been the

case of  the prosecution.  As regards the plot  at  Ambala Cantt.,  this

witness gave out vacillating answers where she first of all stated want

of knowledge; then stated that the plot was in the name of mother; and

again stated her inability to say exactly in whose name it was. Leaving

aside  these  aspects,  the  noteworthy  feature  emerging  from  her

statement is the admission of the fact that the ancestral house was

sold by Brij Bhushan (PW-7).   

24. A combined look at the testimony of PW-7 and PW-8 brings to

the fore one of the significant facts that there had been an ancestral

house belonging to the family that was sold by PW-7 alone and the

sale proceeds were utilised by him to open a grocery shop, one of the

multiple ventures he had tried, mostly resulting in closure or failure.

The appellant had been categoric in her assertion that the property and

money had been at the root of discord in the family and the same had

been the cause for the family of the deceased implicating her. DW-3

has  also  testified  to  the  effect  that  the  deceased  had  his  tense

47

moments  because  of  money  demands  of  his  brother  i.e.,  PW-7.

Unfortunately,  the  Trial  Court  as  also  the  High  Court  have  totally

overlooked these factors and features hovering over the prosecution

story.   

25. Going further deep into the prosecution story, it is clear that there

is  no  direct  and cogent  evidence on  record  that  the  appellant  was

involved in illicit relations or was forcing the deceased to transfer the

property.  It  had  not  been  the  assertion  of  PW-7  or  PW-8  that  the

alleged  illicit  relations  of  the  appellant  and/or  her  pressurising  the

deceased  to  transfer  the  property  had  been  the  matters  of  their

personal  knowledge.  No  particulars  of  any  person  having  illicit

involvement  with  the  appellant  are  to  be  found  on  record.  Such

assertions have been made by these witnesses on the basis of the

statements  allegedly  made  by  the  deceased  to  each  of  them

individually and at different point of time.  The High Court and the Trial

Court have readily accepted the suggestions of PW-7 and PW-8 that

the deceased made the statements to them as alleged; and have even

labelled  the  statement  allegedly  made to  PW-7  as  being  the  dying

declaration of the deceased. Strictly speaking, the alleged statement

made to PW-7 could not have been taken as a ‘dying declaration’ for

the reason that at time of making of such statement, the deceased was

not labouring under his imminent death and he was not recounting the

circumstance of the transaction relating to his death. For the sake of

48

arguments, and on the broad phraseology of the first part of Section 32

(1)  of  the  Indian  Evidence  Act9,  even  if  it  be  assumed  that  the

statement  made  by  the  deceased,  before  the  cause  of  death  had

arisen, or before he had any reason to anticipate his killing, may also

be taken as admissible10, such an alleged statement cannot be directly

acted upon without concrete corroboration. In the present case, what to

say of corroboration, even making of such statement by the deceased

appears to be doubtful.  

25.1.  The  other  prosecution  witnesses  have  not  even  remotely

indicated any traces of discord in the relations of the deceased and the

appellant  for  any  reason whatsoever. The appellant  has specifically

refuted such allegations in her statement under Section 313 CrPC. The

defence  witness  DW-3  Surinder  Kumar  Bhat,  who  had  been  the

colleague of the deceased and was living nearby, has been categorical

that the deceased and the appellant were maintaining good relations

and that the appellant was enjoying a good reputation.  Nothing has

occurred  in  his  cross-examination  to  discredit  this  witness  as

untrustworthy. Another noteworthy factor emerges from the testimony

of  DW-4 Akhilesh Bhatnagar, Assistant, Oriental Insurance Company,

9 32. Cases in which statement of relevant fact by a person who is dead or cannot be found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense, which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) when it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

10 Vide Pakala Narayana Swami v. The King-Emperor: AIR 1939 PC 47  

49

Chandigarh.  He  has  proved  the  hotel  expenses  bills  paid  by  the

employer of the deceased for his stay at Karnal from 14.01.1997 to

01.02.1997. If that were so, the assertion of PW-8 Radha Puri that the

deceased  made  some  statement  to  her  at  Yamuna  Nagar  on

25.01.1997 becomes doubtful. As noticed, though the husband of PW-

8 (with whom she allegedly conferred about the alleged statement of

the deceased) was cited as prosecution witness but was not examined

in the Court.  

26. We may, in the passing also point out another glaring factor in

relation to the testimonies of PW-7 and PW-8. It is but apparent that

PW-7, even before reaching the spot of crime, had already concluded

that his brother had been murdered. In his words: ‘I gave telephonic

messages to my relatives regarding the murder of my brother’. PW-8

has directly contradicted him while saying: ‘On 1.5.97, I came to know

through  my  brother  Brij  Bhushan  that  Tirloki  Nath  had  committed

suicide.  He  told  that  as  per  the  information,  the  neighbourers  at

Panchkula  told  that  Tirloki  Nath  had  committed  suicide.’   Another

feature of the case is that as per the site sketch prepared by PW-3

Manohar Lal, (Ex. PD), there was a bathroom-cum-toilet of 10 feet x 3

feet size, attached with the room in question where the deceased was

putting up, as per the witnesses PW-7 and PW-8. It clearly belies the

suggestion that the deceased was forced to use the washroom of the

tenant at the ground floor.

50

27. For what has been discussed hereinabove, strong elements of

doubts surface on record as regards reliability of these two witnesses

PW-7 and PW-8. In the given circumstances, it is difficult to accept that

the  prosecution  has  been  able  to  establish  by  cogent  and  reliable

evidence  that  the  appellant  was  involved  in  illicit  relations  or  was

pressurising the deceased to transfer the property in her name and that

there  had  been  strong  acrimony  between  the  deceased  and  the

appellant. It is also difficult to accept, for want of cogent corroborative

evidence,  if  the  deceased had made any alleged statements  about

discord with his wife and threat perceptions to PW-7 and PW-8. In the

given circumstances, the possibility of levelling of imputations on the

appellant for intentions other than bringing the real culprit/s to the book

is not ruled out altogether.    

Last seen theory: Proof and effect  

28. The prosecution has relied upon another circumstance that the

deceased was  lastly  in  the  company  of  the  appellant  and she had

failed to explain his whereabouts as also the circumstances leading to

his death.  

28.1. Insofar as the ‘last seen theory’ is concerned, there is no doubt

that the appellant being none other than the wife of the deceased and

staying under the same roof, was the last person the deceased was

seen with.  However, such companionship  of  the  deceased and the

51

appellant, by itself, does not mean that a presumption of guilt of the

appellant  is  to  be drawn.  The Trial  Court  and the High Court  have

proceeded on the assumption that Section 106 of the Indian Evidence

Act11 directly  operates  against  the  appellant.  In  our  view,  such  an

approach has also not been free from error where it was omitted to be

considered  that  Section  106  of  the  Indian  Evidence  Act does  not

absolve  the  prosecution  of  its  primary  burden.  This  Court  has

explained the principle in Sawal Das (supra) in the following:-

“10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts  of  which  the  burden  of  proof  may  lie  upon  the accused……”  

28.2. On the facts  of  the present  case,  it  emerges that  as  per  the

version  of  PW-7,  the  deceased  was  lastly  in  his  company  on

28.04.1997 when he allegedly expressed his dejection and fear as also

his plan to return with luggage. The appellant has pointed out that the

deceased was with her in the morning of 29.04.1997 when he pointed

out his tour programme commencing that day with scheduled return on

03.05.1997. It is not in dispute that the deceased was regularly on tour

for longer durations of about two weeks in connection with his duties.

The dead body was recovered on 01.05.1997 and as per post-mortem

11 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

52

report, the probable time that had elapsed between death and post-

mortem (on 02.05.1997 at  12.30 p.m.) was 24 to 72 hours.  On the

basis  of  this  opinion,  it  cannot  be  assumed by  way  of  arithmetical

calculation  that  the  deceased  might  have  met  with  his  end  on

29.04.1997.  The possibility of it being a day later is not ruled out.  

28.3. In the given set of circumstances, the last seen theory cannot be

operated against the appellant only because she was the wife of the

deceased and was living with him. The gap between the point of time

when the appellant and deceased were last seen together and when

the deceased was found dead had not been that small that possibility

of any other person being the author of the crime is rendered totally

improbable. In SK. Yusuf (supra), this Court has said:-

“21. The last  seen theory  comes into  play  where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is  so small  that  possibility  of  any person other  than  the  accused  being  the  author  of  the  crime becomes impossible.”  

Subsequent conduct of the appellant and other circumstances

29. The  Trial  Court  and  the  High  Court  have  readily,  and  rather

heavily,  relied upon an assertion made by PW-8 in her statement that

upon her reaching the site, the appellant was ‘enjoying tea’ with her

brothers  and  other  relations  on  the  first  floor;  and  was  not  found

stressed or perplexed or saddened. This part of the assertion on the

part  of  PW-8 has its own shortcomings. Such an assertion was not

53

made  by  her  in  the  police  statement;  and  is  not  even  remotely

corroborated  by  any  other  prosecution  witness  including  PW-7.

Moreover, it had been too unrealistic on the part of the Trial Court and

the High Court to observe that the appellant ought to have been found

sitting with  the dead body. Admittedly, the corpse was emitting foul

smell and DW-8 reached the spot at about 4.30 in the morning though

the appellant had noticed the dead body the previous evening and had

taken  steps  for  informing  the  concerned  through  DW-3,  Surinder

Kumar Bhat. In the given circumstances, no fault could be foisted on

the appellant if she did not remain with the dead body all through and

until arrival of PW-8. The expression ‘enjoying tea’ was coined by this

witness PW-8 alone and for want of corroboration and for omission of

such a fact in the police statement, there appears no reason to accept

the same. If at all anything of subsequent conduct of appellant is to be

taken into consideration, it is evident that she attended her office on

30.04.1997 and 01.05.1997. It is not the case of the prosecution that

during these two days, any abnormality in her behaviour was noticed

by  anyone.  The  appellant  neither  concealed herself  nor  altered the

scene of crime in any manner and there had not been any evidence

about any oddity in her manners and demeanour.

30. Another circumstance taken against the appellant had been that

she allegedly did not send any information to the brothers and other

relations of the deceased immediately after noticing his death. Such

54

observations and findings have been recorded against the appellant

while totally overlooking the statement of DW-3. In this regard, it gets

perforce reiterated that the prosecution has not produced any evidence

which could displace the statement of DW-3 that he indeed informed

the  police  at  the  asking  of  the  appellant  at  about  9.30  p.m.  on

01.05.1997  and  did  also  inform  the  brother  of  the  deceased.  As

noticed,  PW-9  ASI  Amar  Singh  did  not  specify  as  to  how  the

information was received by him. Moreover, the person said to have

divulged the information to  the witness PW-7 was never  examined.

Given such omissions in the prosecution case, we find no reason to

discard  the  testimony  of  DW-3.  Once  his  testimony  is  accepted,

several blocks of the prosecution story are knocked to the ground.  

Effect of the acquittal of co-accused persons

31. There is  yet  another  lacuna in  the prosecution case that  has

magnified  itself  with  acquittal  of  the  co-accused,  brothers  of  the

appellant. It cannot be denied that if the appellant had been the killer,

she, by herself, could not have hanged the dead body by the ceiling

fan;  and  the  act  had  definitely  been  performed  by  more  than  one

person. That being the position, the Trial Court readily accepted the

case  against  the  brothers  of  the  appellant  as  conspirators  without

cogent and convincing evidence. The High Court rightly acquitted them

for want of evidence and even observed that the prosecution had failed

to  book  the  real  culprit  in  place  of  the  brothers  of  the  appellant.

55

However,  the  High  Court  yet  considered  it  proper  to  maintain  the

conviction  of  the  appellant  as  the  principal  culprit  while  failing  to

consider that an important link in the prosecution story was snapped as

soon as brothers of the appellant were acquitted.

31.1. We  would  hasten  to  observe  that  merely  for  the  reason  of

acquittal of co-accused, another accused in a criminal case may not be

acquitted  if  cogent  evidence  against  him is  available  and  his  case

could be segregated from the case against the acquitted co-accused.

However, on the basic facts of the present case, it is evident that the

gruesome act in question had not been the handiwork of one person

and  it  would  be  rather  preposterous  to  assume  that  the  appellant

hanged  the  dead  body  by  ceiling  fan  all  by  herself.  In  the  given

circumstances,  when  the  alleged  collaborators  of  the  appellant  are

acquitted,  the  already  existing  clouds  of  doubts  on  the  prosecution

story  get  congealed.  The  High  Court  has  proceeded  with  over-

simplification of the matter by leaving the missing link as merely a fault

of the investigating agency. In our view, as soon as the brothers of the

appellant were acquitted, the High Court ought to have examined the

consequence of such acquittal that an important link in the prosecution

theory  was  snapped  and  it  was  difficult  to  conclude  that  the

prosecution has established its case against the appellant beyond all

reasonable doubts.  

The prosecution case not established beyond reasonable doubt

56

32. Thus,  as  regards  the  circumstances  relied  upon  by  the

prosecution,  the position obtainable from the material placed on record

and the surrounding factors is that (a) the death of deceased Tirloki

Nath was homicidal in nature and had not been suicidal though it was

sought to be projected as suicide by the culprits by hanging the dead

body  from  a  ceiling  fan  in  his  room;  (b)  there  is  no  cogent  and

convincing evidence on record to come to a definite conclusion that the

relations of the deceased and the appellant were strained or that the

appellant  was  indulgent  in  illicit  relations  or  she  was  insisting  for

transfer of  property in her name; (c) it  is also difficult  to come to a

definite conclusion that the deceased had expressed imminent danger

to his life at the hands of the appellant; and (d) even if the deceased

was last  seen alive  in  the  company  of  the  appellant,  the  time gap

between such last  seen and finding of  his  dead body had been of

about 2 to 3 days.  

33. Apart from the factors above, there are several other loopholes

whereby the alleged circumstances sought to be relied upon by the

prosecution lose their worth and force.  As noticed, the investigating

agency  and  the  prosecution  had  not  been  forthright.  The  relevant

aspects  pertaining  to  the  crime  in  question  were  not  properly

investigated  and  even  the  relevant  witnesses  were  not  examined.

Moreover, as noticed, the prosecution case was framed in the manner

57

that the appellant committed the crime with the help of her brothers

who have been acquitted.  

33.1. In the given circumstances, the fact that the staircase from the

ground floor was directly leading to the room in question where the

dead body was found, acquires immense significance.  Even if it  be

assumed that the deceased was putting up in the said room, some

person or persons reaching there directly from the ground floor and

carrying out the crime is not ruled out. In the alternative, some person

or persons having executed the crime at some other place and then

having brought the dead body and hanged it in the room in question is

also  the  possibility  which  cannot  be  brushed  aside  as  entirely

improbable.

34. In the given circumstances, when the prosecution has not been

able to remove the aforesaid doubts and the motive as imputed on the

appellant  does  not  appear  existing,  the  benefit  of  doubt,  obviously,

goes to the appellant.

CONCLUSION

35. For what has been discussed hereinabove, we are clearly of the

view that the Trial Court and the High Court have approached the case

from an altogether wrong angle and have overlooked the major flaws

and shortcomings in the prosecution case. In the given set of facts and

circumstances, even if the prosecution has been able to create some

58

suspicion against the appellant, it would be unsafe to accept that the

implicating circumstances have been established by cogent evidence

and such circumstances form a complete chain that rules out any other

hypothesis  except  guilt  of  appellant.  Hence,  the  conviction  of  the

appellant cannot be sustained; she is entitled to the benefit of doubt.  

36. Consequently,  this  appeal  is  allowed  in  the  manner  that  the

impugned judgment and orders convicting the appellant for the offence

punishable  under  Section  302  IPC  are  set  aside;  the  appellant  is

extended the benefit of doubt and is, accordingly, acquitted. Her bail

bonds are cancelled and sureties are discharged.

...............................................J.      (A.M. KHANWILKAR)

..............................................J.     (DINESH MAHESHWARI)

New Delhi, Date: 19th September, 2019.

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